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If the jury believed Ginn’s version of the facts, then Ginn 

did not breach a duty to ensure that the documents were signed 

before or after the closing. Instead, Balames’ injury was caused 

by his failure to follow Ginn’s advice, his failure to review the 

documents for the required signatures, and his misrepresentation to Ginn that the documents were signed.

Because the court incorrectly concluded that plain error permeated the trial, we presume that the jury’s general verdict for 

Ginn shows it found for him on all the submitted issues. Those 

issues included (1) whether Ginn breached a duty of care, (2) 

whether Balames’ negligence was the sole proximate cause 

of his own injury, and (3) whether the statute of limitations 

for malpractice claims barred Balames’ recovery even if he 

proved his claim. Because we presume that the jury determined 

these issues in Ginn’s favor, we vacate the court’s judgment 

and remand with directions for it to reinstate the judgment 

for Ginn.

Judgment vacated, and cau

remanded with direction

Stephan, J., not participatin

Chad P. Johnson, appellant and cross-appelle

Chris M. Nelson, Personal Representa

the Estate of Stewart S. Minnick, dece

et al., appellees and cross-appellant

___ N.W.2d ___

Filed April 17, 2015. No. S-14-049.

1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower 

court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to 

judgment as a matter of law.

3. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing crossmotions for summary judgment, an appellate court acquires jurisdiction over 
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704 290 NEBRASKA REPORTS

both motions and may determine the controversy that is the subject of those 

motions; an appellate court may also specify the issues as to which questions of 

fact remain and direct further proceedings as the court deems necessary.

4. Specific Performance: Real Estate: Contracts. The equitable remedy of specific performance regarding a contract for the sale of real estate may be granted 

where a valid, binding contract exists which is definite and certain in its terms, 

mutual in its obligation, free from overreaching fraud and unfairness, and where 

the remedy at law is inadequate.

5. Contracts: Specific Performance: Proof. Before a court may compel specific 

performance, there must be a showing that a valid, legally enforceable contract 

exists. The burden of proving a contract is on the party who seeks to compel 

specific performance.

6. Contracts: Insurance: Public Policy. At common law, life insurance policies 

issued to a party not having an insurable interest in the life of an insured are 

considered a wager on the life of another and therefore void as being against 

public policy.

7. Public Policy: Words and Phrases. Public policy is that principle of the law 

which holds that no subject can lawfully do that which has a tendency to be 

injurious to the public or against the public good, the principles under which 

the freedom of contract or private dealings are restricted by law for the good of 

the community.

8. Contracts: Public Policy. A contract which is clearly contrary to public policy 

is void.

9. ____: ____. The determination of whether a contract violates public policy presents a question of law.

10. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of 

a party’s case; only a party who has standing may invoke the jurisdiction of 

a court.

11. Standing. It is the party initiating the suit who must meet the standing requirement, not a defendant.

12. Courts: Contracts: Public Policy. The power of courts to invalidate contracts 

for being in contravention of public policy is a very delicate and undefined power 

which should be exercised only in cases free from doubt.

13. Appeal and Error. An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Frontier County: Davi

Urbom, Judge. Affirmed

Nathaniel J. Mustion, of Mousel, Brooks, Garner & 

Schneider, P.C., L.L.O., and Victor E. Covalt III and Adam R. 

Little, of Ballew, Covalt & Hazen, P.C., L.L.O., for appellant.

Terry R. Wittler, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellees.
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JOHNSON v. NELSON 705

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Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, a

Stephan, 

In 2007, Chad P. Johnson and Stewart S. Minnick entered 

into a written agreement whereby, after Minnick’s death, 

Johnson would purchase farmland he had been renting from 

Minnick and Minnick’s sister for a specified price. The purchase price was to be funded by an insurance policy owned by 

Johnson on Minnick’s life. Following Minnick’s death in 2012, 

the proceeds of the policy were paid to Johnson. He tendered 

them pursuant to the agreement, but the personal representative 

of Minnick’s estate refused to consummate the sale.

Johnson then brought an action for specific performance 

and other relief. The district court for Frontier County held the 

purchase agreement was unenforceable, because (1) Minnick 

lacked authority to enter into it on behalf of his sister and (2) 

the agreement provided no means of allocating the purchase 

price to only that portion of the property which Minnick owned 

in his own right. The court also held that Johnson’s claim for 

damages was time barred and dismissed a counterclaim filed 

by the personal representative and Minnick’s heirs seeking 

equitable distribution of the insurance proceeds that had been 

paid to Johnson. Although our reasoning differs from that of 

the district court, we affirm its judgment.

BACKGROUND

Fact

Since 1997, Johnson has farmed land owned by Minnick 

and Minnick’s sister Mary E. Nelson pursuant to an oral lease 

agreement. The lease terms required Johnson to pay cash rent 

for pastureland and to pay a share of the crop on the remaining land. The land is made up of two contiguous tracts. What 

is referred to in the record as “Tract 1” was owned solely by 

Minnick, and what is referred to as “Tract 2” was owned by 

Minnick and Nelson as tenants in common. Minnick’s family had a long association with the land. Johnson always dealt 

directly with Minnick on matters pertaining to both tracts; 

Nelson had no direct involvement.
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In the fall of 2006, Johnson met with an insurance agent 

and discussed taking out a life insurance policy on Minnick 

and then using the proceeds to purchase the farmland after 

Minnick’s death. The agent was Johnson’s cousin. The agent 

advised Johnson that he would need an insurable interest in 

Minnick’s life and recommended that Johnson and Minnick 

enter into a buyout agreement. Minnick agreed to the plan and 

worked with the agent to find a company willing to issue a 

$500,000 insurance policy on his life. Eventually, an application for life insurance signed by both Johnson and Minnick 

was submitted to a life insurance company and a policy was 

issued with an effective date of March 12, 2007. Johnson was 

the owner of the policy, Minnick was the named insured, and 

Johnson and his wife were the primary and secondary beneficiaries, respectively. On the effective date of the policy, 

Minnick was 80 years old.

The buyout agreement is dated January 16, 2007. It specifically provides that Johnson will purchase life insurance on 

Minnick; that on Minnick’s death, Johnson will pay the proceeds of the policy to the personal representative of Minnick’s 

estate; and that the estate shall then transfer the farmland to 

Johnson. The agreement is signed by Johnson, Minnick, and 

“Mary Nelson by Stewart Minnick, P.O.A.”

Minnick died in January 2012. He never married, and had no 

surviving children. Nelson was his only surviving sibling. His 

will, executed in 2002, designates Nelson’s three adult children 

as residual beneficiaries.

Prior to Minnick’s death, Johnson paid approximately 

$170,000 in premiums on the life insurance policy. After 

Minnick died, the insurer paid the policy proceeds of $500,000 

to Johnson. Johnson then tendered this amount to the personal 

representative of Minnick’s estate and requested conveyance of 

the farmland pursuant to the buyout agreement. The personal 

representative refused to convey the farmland.

Nelson testified that she and Minnick discussed the possibility of selling the farmland on only one occasion, in late 

2006, and that she told Minnick at that time she was unwilling 

to sell. She denied giving Minnick either verbal permission or 
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a written power of attorney authorizing him to enter into the 

agreement with Johnson on her behalf. There is no power of 

attorney in the record, and the parties agree that Minnick had 

no authority to enter into the agreement on behalf of Nelson. 

During his lifetime, Minnick did not disclose the agreement 

to Nelson, her children, or the attorney who drew his will and 

regularly handled his financial affairs.

Procedural Histo

Following Minnick’s death, the personal representative published a notice to creditors stating that claims against the estate 

were to be filed by April 17, 2012. On March 21, Johnson filed 

a claim against Minnick’s estate in the county court for Furnas 

County, seeking specific performance of the buyout agreement. 

On April 2, the personal representative mailed a notice of disallowance of the claim to Johnson.

On July 2, 2012, Johnson filed this action in the district 

court for Frontier County seeking specific performance of the 

buyout agreement and other relief. In the operative complaint, 

he alleged that when the agreement was executed in 2007, 

the farmland was worth approximately $450,000, and that the 

farmland was worth $1.25 million at the time of Minnick’s 

death in 2012. The original defendants were Nelson and the 

personal representative. Nelson’s three children later intervened in their individual capacities. For purposes of clarity, 

we shall refer to the personal representative, Nelson, and her 

children collectively as “the estate.”

In his amended complaint, Johnson alleged that Minnick 

owned tract 1 in fee simple and owned an undivided onehalf interest in tract 2. Johnson acknowledged that when 

Minnick executed the buyout agreement, he lacked the requisite power of attorney to convey Nelson’s interest. Johnson 

further alleged that an award of damages would not adequately 

compensate him for the personal representative’s “refusal to 

convey that portion of the Real Estate that . . . Minnick had 

the power to contract to sell.” Johnson sought specific performance of the buyout agreement; he asked the court to 

require the personal representative to convey to him title to 
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tract 1 and title to “Minnick’s undivided one-half (1/2) interest” in tract 2. In separate causes of action, Johnson sought 

reformation of the contract and damages for negligent and 

fraudulent misrepresentation.

The estate filed an answer alleging that the buyout agreement was void for various reasons, including that Johnson 

lacked an insurable interest in Minnick’s life. It also alleged 

that Johnson’s claim for damages was barred by his failure to 

file a timely claim as required by Neb. Rev. Stat. § 30-2485 

(Cum. Supp. 2014). In addition, it asserted counterclaims 

for slander of title and equitable distribution of the insurance proceeds.

Johnson moved for partial summary judgment on his specific performance claim, and the estate moved for summary 

judgment in its favor with respect to all of Johnson’s claims. 

In overruling Johnson’s motion for summary judgment, the 

district court rejected the estate’s claim that the buyout agreement was void as against public policy because Johnson had 

no insurable interest in Minnick’s life, reasoning the estate 

had no standing to raise that claim. The court also rejected 

the estate’s claims that the buyout was unenforceable as an 

“agreement to agree” or as an unreasonable restraint on alienation of land. The court determined, however, that the buyout 

agreement could not be specifically performed, because there 

was no means of apportioning the $500,000 purchase price 

between Minnick’s interest in the land and Nelson’s interest in 

the land. Further, the court determined that Johnson’s claim for 

damages was time barred by § 30-2485(a)(1), because he filed 

this action more than 60 days after the notice of disallowance 

of claim was mailed.

The district court also dismissed the estate’s counterclaim 

for equitable distribution, concluding that only the insurer 

can assert a claim against a beneficiary based upon a lack of 

insurable interest. The court ultimately entered summary judgment for the estate on all of Johnson’s claims, and the estate 

dismissed its counterclaim for slander of title.

Johnson filed this timely appeal, and the estate crossappealed. We granted the estate’s petition to bypass.
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ASSIGNMENTS OF ERROR

Johnson assigns, restated and summarized, that the district 

court erred (1) in failing to grant specific performance of the 

buyout agreement and (2) in dismissing his claim for damages.

On cross-appeal, the estate assigns, restated and summarized, that the district court erred in (1) failing to rule that 

the buyout agreement was an unreasonable restraint on alienation, an unenforceable agreement to agree, or void due to the 

absence of an insurable interest, and (2) holding that it could 

not assert an equitable claim to the insurance proceeds paid to 

Johnson based upon a claim that Johnson lacked an insurable 

interest in Minnick’s life.

STANDARD OF REVIEW

[1] Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving 

party is entitled to judgment as a matter of law.1

[2] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law.2

[3] When reviewing cross-motions for summary judgment, 

an appellate court acquires jurisdiction over both motions and 

may determine the controversy that is the subject of those 

motions; an appellate court may also specify the issues as to 

which questions of fact remain and direct further proceedings 

as the court deems necessary.3

1 Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); Southwind 

Homeowners Assn. v. Burden, 283 Neb. 522, 810 N.W.2d 714 (2012).

2 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015); Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 

(2015).

3 Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 469 

(2011).
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ANALYSIS

Specific Performa

[4,5] The equitable remedy of specific performance regarding a contract for the sale of real estate may be granted where 

a valid, binding contract exists which is definite and certain 

in its terms, mutual in its obligations, free from overreaching 

fraud and unfairness, and where the remedy at law is inadequate.4

 Before a court may compel specific performance, there 

must be a showing that a valid, legally enforceable contract 

exists.5 The burden of proving a contract is on the party who 

seeks to compel specific performance.6

The estate alleged that specific performance was improper 

for four reasons: (1) The buyout agreement was simply an 

agreement to agree, (2) the buyout agreement was an unreasonable restraint on alienation, (3) there was no means of 

abating the purchase price to account for Nelson’s interest, 

and (4) the buyout was void because Johnson lacked an insurable interest in Minnick’s life. The district court determined 

the buyout was not simply an agreement to agree and was 

not an unreasonable restraint on alienation. It also concluded 

that because there was no means of abating the purchase price 

to account for Nelson’s interest, the buyout agreement could 

not be enforced by ordering specific performance. The court 

refused to decide whether Johnson lacked an insurable interest 

in Minnick’s life, reasoning the estate lacked standing to raise 

that defense. Both Johnson and the estate challenge the district 

court’s ruling on specific performance.

We first address the estate’s claim that the buyout was void 

because Johnson lacked an insurable interest in Minnick’s 

life.

[6-9] At common law, life insurance policies issued to a 

party not having an insurable interest in the life of an insured 

are considered a wager on the life of another and therefore 

4 See Mohrlang v. Draper, 219 Neb. 630, 365 N.W.2d 443 (1985).

5 Satellite Dev. Co. v. Bernt, 229 Neb. 778, 429 N.W.2d 334 (1988).

6 Id.
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void as being against public policy.7 In contract and insurance 

law, public policy is that principle of the law which holds 

that no subject can lawfully do that which has a tendency 

to be injurious to the public or against the public good, the 

principles under which the freedom of contract or private dealings are restricted by law for the good of the community.8

 A 

contract which is clearly contrary to public policy is void.9

The determination of whether a contract violates public policy 

presents a question of law.10

The district court rejected this defense on the ground that 

the estate did not have standing to question Johnson’s insurable 

interest in Minnick’s life. In reaching this conclusion, it relied 

on Ryan v. Tickle,

11 an action brought by the widow of the 

insured and the executrix of his estate to recover the proceeds 

of a life insurance policy taken out by the insured’s former 

business partner and paid to the partner upon the insured’s 

death. The issue was whether the executrix could sue the former partner to recover the policy proceeds, based on a claim 

that he lacked an insurable interest in the life of the insured. 

We concluded that the widow/executrix had “no standing or 

right to bring [the] lawsuit.”12

[10,11] In the estate’s cross-appeal, it argues that the district court erred in concluding that Ryan precluded it from 

asserting that the buyout agreement was void as a defense to 

Johnson’s claim for specific performance. It argues that Ryan 

7 See, Warnock v. Davis, 104 U.S. (14 Otto) 775, 26 L. Ed. 924 (1881); 

Chamberlain v. Butler, 61 Neb. 730, 86 N.W. 481 (1901). See, also, 28 

Bertram Harnett & Irving I. Lesnick, Appleman on Insurance 2d, Life 

Insurance § 174.01[A] (2006).

8 American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 

(2002); Volquardson v. Hartford Ins. Co., 264 Neb. 337, 647 N.W.2d 599 

(2002).

9 Bamford v. Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).

10 Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747 N.W.2d 

1 (2008); American Fam. Mut. Ins. Co. v. Hadley, supra note 8; Ploen v. 

Union Ins. Co., 253 Neb. 867, 573 N.W.2d 436 (1998).

11 Ryan v. Tickle, 210 Neb. 630, 316 N.W.2d 580 (1982).

12 Id. at 634, 316 N.W.2d at 582.
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involved an issue of standing to seek affirmative relief, not 

the assertion of a defense. Standing is a jurisdictional component of a party’s case; only a party who has standing may 

invoke the jurisdiction of a court.13 In Community Dev. Agency 

v. PRP Holdings,

14 we stated that it is the party initiating the 

suit who must meet the standing requirement, not a defendant. 

Other jurisdictions hold likewise. For example, the Colorado 

Supreme Court has observed that “[t]raditional concerns surrounding standing are not implicated when a defendant’s 

standing is challenged; a defendant may assert an affirmative 

defense in response to a complaint, which asserts that the 

defendant has an interest in the action.”15 Similarly, the Idaho 

Supreme Court has held that “‘[s]tanding is a subcategory of 

justiciability, and the standing inquiry is focused on the party 

seeking relief.’”16

We acknowledge that there is language in Ryan which, 

taken out of context, could suggest that a party other than the 

insurer cannot raise the lack of an insurable interest under any 

circumstances. For example, we stated in Ryan that there was 

established law in other jurisdictions that “only the insurer 

can raise the objection of want of an insurable interest.”17

But, as noted, Ryan involved a claim brought against a beneficiary to recover policy proceeds on the ground that the beneficiary lacked an insurable interest, as did Secor v. Pioneer 

Foundry,

18 the principal case on which Ryan relied. Because 

Ryan dealt with a challenge to insurable interest only in the 

context of standing to assert a claim to insurance proceeds, 

13 Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797 

N.W.2d 748 (2011).

14 Community Dev. Agency v. PRP Holdings, 277 Neb. 1015, 767 N.W.2d 68 

(2009).

15 Mortgage Investments v. Battle Mountain, 70 P.3d 1176, 1182 (Colo. 

2003).

16 Stonebrook Const. v. Chase Home Finance, 152 Idaho 927, 930, 277 P.3d 

374, 377 (2012), quoting Taylor v. AIA Services Corp., 151 Idaho 552, 261 

P.3d 829 (2011).

17 Ryan, supra note 11, 210 Neb. at 634, 316 N.W.2d at 582.

18 Secor v. Pioneer Foundry, 20 Mich. App. 30, 173 N.W.2d 780 (1969).
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we do not read it as precluding the assertion of the estate’s 

defense that the buyout agreement is unenforceable because 

its funding mechanism is an insurance policy on the life of 

one in whom the owner and beneficiary of the policy had no 

insurable interest.

The question, then, is whether the defense has merit. In 

Nebraska, an “[i]nsurable interest, in the matter of life and 

health insurance, exists when the beneficiary because of relationship, either pecuniary or from ties of blood or marriage, 

has reason to expect some benefit from the continuance of the 

life of the insured.”19 Johnson and Minnick were not related 

by blood or marriage, so the question of whether Johnson had 

an insurable interest in Minnick’s life turns on their “pecuniary” relationship.

This court has not decided the type of pecuniary or economic relationship which may form the basis of an insurable 

interest in the context of life insurance. Some courts have held 

that one business partner may have an insurable interest in the 

life of another business partner where there is an expectation 

of pecuniary benefit from the continued life of the insured 

partner.20 But Johnson acknowledged that he and Minnick 

were not business partners. Courts have also held that a business entity may have an insurable interest in the life of a key 

employee whose death would adversely affect the business.21

But there was no employment relationship between Johnson 

and Minnick. Under some circumstances, a creditor has been 

held to have an insurable interest in the life of a debtor.22

But the record reflects no such relationship between Johnson 

and Minnick.

19 Neb. Rev. Stat. § 44-103(13)(b) (Reissue 2010).

20 See, e.g., Graves v. Norred, 510 So. 2d 816 (Ala. 1987); Ridley v. 

VanderBoegh, 95 Idaho 456, 511 P.2d 273 (1973).

21 See, e.g., U.S. v. Supplee-Biddle Co., 265 U.S. 189, 44 S. Ct. 546, 68 L. 

Ed. 970 (1924); Murray, Exrs., v. G. F. Higgins Co., 300 Pa. 341, 150 

A. 629 (1930); Mutual Life Ins. Co. v. Board, 115 Va. 836, 80 S.E. 565 

(1914).

22 See, e.g., Cosentino v. William Penn Life Ins. Co. of New York, 224 A.D.2d 

777, 636 N.Y.S.2d 943 (1996).
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At the time the policy issued, the relationship between 

Johnson and Minnick was that of (1) landlord and tenant 

under an oral farm lease and (2) parties to the buyout agreement, which could be performed only after Minnick’s death. 

A similar relationship was the subject of a Maryland case, 

Beard v. American Agency.23 There, a farmer who leased land 

and had an option to purchase it after the owner’s death purchased an insurance policy on the life of the owner, planning 

to use the proceeds to purchase the land after the owner died. 

After the landowner’s death, the insurer sought a declaratory 

judgment that the farmer had no insurable interest in the life 

of the landowner and that the policy was therefore void. A 

Maryland statute defined an insurable interest in the life of an 

unrelated person as “‘a lawful and substantial economic interest in having the life . . . of the individual insured continue, as 

distinguished from an interest which would arise only by, or 

would be enhanced in value by, the death’”24 of such person. 

The court reasoned that this standard was not met, because 

the farmer would not receive any particular benefit from the 

continued life of the landlord; at best he would remain a tenant on the land while the landlord was alive, and would realize 

an economic benefit only after the landowner died. And the 

court held that the relationship between the farmer and the 

landowner could not be considered a partnership, noting that 

payment of rent, whether in the form of cash or a share of the 

farm’s profits, would not create an inference supporting the 

existence of a partnership.

We need not decide whether a landlord-tenant relationship 

with respect to agricultural property could ever form the basis 

of an insurable interest. We conclude only that in this case, 

as in Beard, it did not. The agent who procured the policy 

for Johnson described the insurable interest as “guaranteeing 

a buyer for . . . Minnick and his sister at a price agreeable 

to both parties, while at the same time ensuring . . . Johnson 

and his family the opportunity and resources to purchase this 

farm property essential to continuing their farm business.” But 

23 Beard v. American Agency, 314 Md. 235, 550 A.2d 677 (1988).

24 Id. at 245, 550 A.2d at 681.
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this does not meet the requirement of § 44-103(13)(b) that for 

there to be an insurable interest, the beneficiary must have 

“reason to expect some benefit from the continuance of the 

life of the insured.” Like the farmer in Beard, Johnson had 

no reason to expect any pecuniary benefit from the continuance of his landlord’s life. As long as Minnick lived and was 

willing to rent the land to Johnson, Johnson would remain a 

tenant on the land. The only difference in the relationship after 

the execution of the buyout agreement was that Johnson had 

the financial obligation to pay premiums on the life insurance 

policy. The longer Minnick lived, the more premiums Johnson 

had to pay to keep the policy in force. Under this arrangement, Johnson’s pecuniary interest would not benefit from the 

continuation of Minnick’s life; to the contrary, it would benefit from Minnick’s death before additional premiums came 

due. In effect, Johnson was gambling that Minnick would die 

sooner rather than later. This is precisely the reason why an 

insurance policy on the life of one in whom the owner and 

beneficiary of the policy lacks an insurable interest is void as 

against public policy.25

[12,13] The insurance policy on Minnick’s life was an 

integral component of the buyout agreement which Johnson 

sought to enforce after Minnick’s death. The agreement was 

the reason for the policy, and the policy was the exclusive 

financing mechanism for the agreement. The power of courts 

to invalidate contracts for being in contravention of public 

policy is a very delicate and undefined power which should 

be exercised only in cases free from doubt.26 We are satisfied 

that this is one of those cases. We conclude that the buyout 

agreement was void as against public policy because it incorporated a financing mechanism consisting of a life insurance 

policy in which the owner and beneficiary lacked an insurable 

interest in the life of the insured. We therefore agree with the 

district court that the buyout agreement was not specifically 

25 See sources cited supra note 7.

26 Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d 

465 (2010); Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 

776 (2006).
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enforceable as a matter of law, although for different reasons 

than those articulated by the district court.27 Because we reach 

this determination, we need not address the other assignments 

of error relating to specific performance; an appellate court is 

not obligated to engage in an analysis that is not necessary to 

adjudicate the case and controversy before it.28

Claim for Damag

Johnson argues that the district court erred in determining 

that his alternative claim for damages based on theories of 

breach of contract, fraudulent misrepresentation, and negligent misrepresentation was time barred by § 30-2485(a)(1). 

That statute provides that all claims against a decedent’s 

estate which arose before the death of the decedent are barred 

unless presented within 2 months after the date of the first 

publication of notice to creditors. Under Neb. Rev. Stat. 

§ 30-2486 (Reissue 2008), claims against a decedent’s estate 

may be presented either by filing a written statement with 

the clerk of the court29 or by commencing an action against 

the personal representative in any court having subject matter jurisdiction and personal jurisdiction.30 If the claim is 

presented by filing a written statement with the clerk of the 

court, then “no proceeding thereon may be commenced more 

than sixty days after the personal representative has mailed a 

notice of disallowance.”31

Here, notice to creditors was first published on February 

2, 2012, and creditors were required to file claims by April 

17. Johnson filed a claim with the clerk of the Furnas County 

Court on March 21. A notice of disallowance of his claim was 

mailed to him on April 2. The notice specifically stated that 

failing to commence a proceeding within 60 days after the 

mailing of the notice would forever bar the claim.

27 See Tyson Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005).

28 Whitesides v. Whitesides, ante p. 116, 858 N.W.2d 858 (2015); Millennium 

Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).

29 § 30-2486(1).

30 § 30-2486(2).

31 § 30-2486(3).
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This action was filed on July 2, 2012, which was outside 

the 60-day period specified in § 30-2486(3), and for that 

reason, the district court concluded it was time barred. In his 

brief, Johnson asserts that he filed and served a petition for 

allowance of claim in the county court on April 10, 2012. He 

concedes this document does not appear in the record, but 

argues its existence “can, and should have been, inferred from 

the record.”32 Specifically, he contends the existence of this 

document can be inferred because the attorney for the personal 

representative testified that he prepared a motion to summarily 

deny a claim on May 21, thus creating the inference that there 

was a claim to deny.

We find no merit in this argument. If such a document 

existed, Johnson had the opportunity to offer it into evidence 

at the summary judgment hearing. Even though Johnson as the 

party opposing a motion for summary judgment is entitled to 

all reasonable inferences in his favor,33 he cannot avoid summary judgment on a record that clearly demonstrates his claim 

was time barred by speculating that he may have actually filed 

in time in another court.

For completeness, we note that Johnson also argues that 

the district court lacked subject matter jurisdiction to decide 

whether his claim for damages was timely filed, because the 

probate court has exclusive jurisdiction over claims against 

the estate. This argument is also without merit. Johnson 

invoked the jurisdiction of the district court to adjudicate his 

claim for damages, and the district court clearly had subject 

matter jurisdiction to interpret and apply the nonclaim statutes in order to adjudicate the defense that the action was 

time barred.

Counterclaim f

Insurance Proc

The estate counterclaimed for “Equitable Distribution of 

[the] Insurance Proceeds,” alleging that because Johnson 

32 Brief for appellant at 27.

33 See O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731 

(2014).
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lacked an insurable interest in Minnick’s life, Minnick’s estate 

and heirs “are the proper beneficiaries of any insurance upon 

his life.” The estate prayed for judgment against Johnson in 

the amount of $500,000, the amount of the life insurance 

policy proceeds.

The district court dismissed this counterclaim, reasoning 

it was barred by our holding in Ryan v. Tickle.

34 In its crossappeal, the estate contends this was error and asks us to impose 

a constructive trust on the life insurance proceeds paid to 

Johnson in favor of the estate.

This claim is barred by our holding in Ryan, because the 

estate lacks standing to assert the claim against Johnson. But 

the estate asks that we overrule Ryan, because the “only effective means of enforcing the prohibition against wagers on an 

individual’s life is to remove the economic incentive for such 

wagers by recognizing that the estate and heirs of the deceased 

have standing to challenge the payment of policy proceeds to a 

beneficiary lacking an insurable interest.”35

Although Ryan is consistent with case law in other 

jurisdictions,36 the reasoning on which it and other similar cases relies has been questioned. The insurable interest 

doctrine “evolved to protect the public from wagering contracts and incentives to the destruction of property or lives.”37

Nothing about the doctrine was meant to protect the interests 

of insurance companies; thus, for the courts to allow only the 

insurer to raise the issue seems incongruent. The rule that only 

the insurer can raise a lack of an insurable interest is also 

somewhat at odds with a corollary rule, also followed by a 

majority of jurisdictions, that an insurer, by entering into a life 

34 Ryan v. Tickle, supra note 11.

35 Reply brief for appellees at 4.

36 See, generally, 28 Harnett & Lesnick, supra note 7, § 174.10[A]; 3 Steven 

Plitt et al., Couch on Insurance 3d §§ 41:5 and 41:6 (2011).

37 Peter Nash Swisher, The Insurable Interest Requirement for Life Insurance: 

A Critical Reassessment, 53 Drake L. Rev. 477, 532 (2005) (emphasis 

supplied), quoting Robert H. Jerry II, Understanding Insurance Law 

§ 47[b] (3d ed. 2002).
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JOHNSON v. NELSON 719

Cite as 290 Neb. 703

insurance contract with someone who lacks an insurable interest in the insured, does not waive the lack of an insurable interest defense by waiver or estoppel, or even by an incontestability clause in the contract.38 Courts adopt this rule by reasoning 

that the insurable interest doctrine is intended to protect the 

public, not the insurer, and that thus, the insurer cannot waive 

something designed to protect the public.39 One commentary 

notes that as a general rule, “the social goal underlying the 

insurable interest requirement would be better served by allowing the estate of the insured to recover the proceeds of a policy 

issued without insurable interest than by continuing to allow 

that issue to be raised by the insurer as a defense.”40

A few state courts have departed from the majority position 

and held that an estate has standing to challenge a beneficiary’s 

right to retain insurance proceeds where the beneficiary lacked 

an insurable interest in the life of the deceased insured.41

And in a number of states, the standing of an estate to sue 

for recovery of insurance proceeds from a beneficiary who 

lacked an insurable interest has been conferred by statute.42

For example, South Dakota has statutes which provide that if 

a beneficiary lacking an insurable interest receives insurance 

benefits, “the individual insured or his executor or administrator, as the case may be, may maintain an action to recover such 

benefits from the person so receiving them.”43 And Oklahoma 

statutes provide “in substance that if anyone takes out a contract of insurance . . . on a person in whom it does not have an 

38 See 3 Plitt et al., supra note 36, § 41:7.

39 Id. See, Phillips v. Ins. Co., 60 Ohio St. 2d 180, 398 N.E.2d 564 (1979); 

Farm Bur. Mut. Ins. Co. of Ark. v. Glover, 2 Ark. App. 79, 616 S.W.2d 755 

(1981).

40 28 Harnett & Lesnick, supra note 7, § 174.11 at 134.

41 See, Tamez v. Certain Underwriters at Lloyd’s, 999 S.W.2d 12 (Tex. App. 

1998); Smith v. Coleman, 184 Va. 259, 35 S.E.2d 107 (1945); Tate v. 

Building Ass’n., 97 Va. 74, 33 S.E. 382 (1899).

42 28 Harnett & Lesnick, supra note 7, § 174.10[B].

43 S.D. Codified Laws § 58-10-5 (2004). See, also, S.D. Codified Laws 

§ 58-10-3 (2004).
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720 290 NEBRASKA REPORTS

insurable interest, the insured or his representative may maintain a cause of action to recover the proceeds.”44

We find some merit in the criticism of the rule established 

in Ryan and similar cases in other jurisdictions. But simply 

overruling Ryan, which has been the law in this state for more 

than 30 years, would not necessarily achieve legal clarity or 

an equitable result in all instances. For example, the liability 

of a beneficiary who obtains insurance proceeds in the good 

faith belief that an insurable interest existed may be different 

than the liability of one who achieves the same result through 

fraud or undue influence. In the former instance, recovery 

of the full amount of the policy proceeds by an estate may 

constitute a windfall, at least to the extent of premiums paid 

by the beneficiary. And, depending on the facts, there could 

be tension with a Nebraska statute which provides that “any 

money used as a bet or stake in gambling activity . . . shall be 

forfeited to the state.”45

We conclude that the better course is not to overrule Ryan. 

We leave to the Legislature the policy questions of whether 

and under what circumstances an estate of an insured may 

recover insurance proceeds paid to a beneficiary who lacks 

an insurable interest in the life of the insured. Accordingly, 

we conclude that the district court did not err in dismissing 

the counterclaim.

CONCLUSION

Although our reasoning differs from that of the district 

court, we conclude that it did not err in dismissing Johnson’s 

claims and the estate’s counterclaim. Accordingly, we affirm.

Affirmed

Wright, J., not participating

44 Tillman ex rel. Estate v. Camelot Music, 408 F.3d 1300, 1302 (10th Cir. 

2005), citing Okla. Stat. Ann. tit. 36, §§ 3601 and 3604(B) (West 1999).

45 Neb. Rev. Stat. § 28-1111 (Reissue 2008).